Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gordon v. Her Majesty's Advocate [2004] ScotHC 59 (29 September 2004)
URL: http://www.bailii.org/scot/cases/ScotHC/2004/59.html
Cite as: [2004] ScotHC 59

[New search] [Help]

Gordon v. Her Majesty's Advocate [2004] ScotHC 59 (29 September 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Penrose

Lord Hamilton

Appeal No: XC391/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

GRAHAM GORDON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Carrol, Solicitor Advocate; McClure Collins

Respondent: J. Beckett, A.D.; Crown Agent

29 September 2004

[1] The appellant has appealed against his conviction on a charge of rape. According to the terms of the charge of which he was convicted, he

"did assault [the complainer] seize her, pull her to the floor, restrain her there, remove her clothing, bite her on the breast, lie on top of her, force her legs apart and did rape her, all to her injury".

[2] The complainer gave evidence that she had been drinking in a number of public houses on a Saturday evening. The appellant asked her to dance and, after having bought her a drink, invited her to go back to his flat. She vaguely recalled getting into his car. When the car door was opened close to his flat she fell out of the car but did not hurt herself. She was helped upstairs to his flat, where she went in to the living room. She recalled using her mobile phone to phone for a taxi to take her home. She asked the appellant to tell her where she was and to give her a name, but he would not do so. Thereafter he grabbed her by the legs and pulled her to the floor. He pulled up her top and bit her on the breast. She was trying to break free. She was trying to wriggle about trying to escape, but she did not have any success. She kept telling him to get off her. He pulled down her trousers, breaking a chain on them. He pulled down his trousers. He removed her pants. He forced her legs open with his hands, lay on top of her and penetrated her. She was trying to pull up her clothing, trying to fight. She was saying that he should leave her alone. He was "very forceful". He was forcing himself inside her. She was trying to fight back, trying to push him off her but she could not do so. The incident ended when the complainer told the appellant that she was married and that her husband would be waiting at home for her. At that point the appellant got up and left. She gathered up her clothes and ran from the flat.

[3] There was also evidence that shortly thereafter she was seen by two friends. One of them gave evidence that she was upset, and also very annoyed and angry. The other described her as being almost in shock. On medical examination it was found that she had a bruise one cm by one cm above one of her nipples and three small bruises on her right thigh, which the doctor thought was possibly consistent with the use of force to prise open her legs.

[4] The appellant did not give evidence, but evidence was given in regard to his interview by the police. The tape and video recording of the interview was played to the jury. In the course of that interview the appellant stated that he and the complainer had had intercourse and oral sex, to which she had fully consented.

[5] Mr Carroll, who appeared as solicitor advocate for the appellant, maintained two grounds of appeal against conviction. According to the first of these grounds, even if it was possible to infer from the complainer's evidence that the appellant had the mens rea for the crime of rape, there was insufficient evidence to provide corroboration of this. In particular evidence of the complainer's distress did not provide such corroboration. In support of this ground of appeal Mr Carroll submitted that one of the answers given by the complainer in the course of her examination chief suggested the absence of mens rea. When she was asked the question "Could he be in any doubt in your view that you didn't want him to do what he was doing?", she replied "Yes". This was not inconsistent with her answering "No" to the next question which was "Well do you think in his view you were happy for what was going on?". The Advocate depute had not taken the first answer any further. Mr Carroll pointed out that the Crown maintained that the appellant had sexual intercourse with the complainer without her consent, applying the law as stated in the Lord Advocate Reference (No.1 of 2001) 2002 SCCR 435. The case which the Advocate depute put to the jury was that corroboration of the complainer's evidence that sexual intercourse was without her consent could be found in the evidence as to her distress after the incident. It was a matter for the Advocate depute to decide on what evidence that case should be based. He did not present the case as being one in which the will of the complainer had been overcome by the use of force. He did not rely on the medical evidence as to the interpretation of any injuries to the complainer. Moreover any such injuries were consistent with alternative explanations. There was no injury which could have been seen by the appellant at the time of the incident.

[6] The submissions made by Mr Carroll were critically dependent on the present case being treated as one of non-forcible rape, of the type with which McKearney v H.M. Advocate 2004 SCCR 251 was concerned. We are entirely satisfied that it was not the case of that type. The complainer plainly gave evidence that the appellant had used force in order to obtain sexual intercourse with her. This was in accordance with the terms of the charge. We do not consider that the passage in her examination chief to which Mr Carroll referred made any difference. In the light of her evidence as a whole it is reasonably plain that in answering the first question as she did she was saying that she did not want the appellant to do what he was doing, and not that he could have been in any doubt about this. There is nothing in the speeches of the Advocate depute or of counsel for the appellant to suggest that there was any issue as to whether the appellant could have honestly but mistakenly believed that she consented to what he did. As regards the presentation of the Crown case to the jury, it is clear that the Advocate depute sought the conviction of the appellant as libelled. He founded on the whole evidence of the complainer and did not limit himself to relying on only part of it. While the Advocate depute highlighted the evidence as to the distress shown by the complainer shortly after the incident, he did not exclude consideration of the significance of the injuries which were found on medical examination. We note that in his speech to the jury counsel for the appellant made a point of submitting that the medical evidence did not support the complainer's contention that she had been grabbed by the legs and pulled to the floor. In the circumstances we are satisfied that the jury were entitled to treat the evidence of the complainer's distress as corroborating the complainer's evidence as to the appellant's use of force, and hence as showing that she had not consented, and that the appellant had known that she was not consenting or been reckless as to that matter.

[7] In the second ground of appeal it is maintained that the trial judge misdirected the jury in that he failed to give clear and explicit directions on mens rea. In the course of his charge the trial judge directed the jury (at pages 30-31 of the transcript of his charge) that they could have regard to evidence as to the complainer's emotional state as providing corroboration of the evidence of the complainer that the sexual intercourse had been without her consent. It is maintained that this did not provide corroboration of the appellant's mens rea.

[8] This ground of appeal also fails for essentially the same reason, namely that this was not a case of non-forcible rape. Before the jury the Advocate depute did not depart from the terms of the indictment to any extent, and invited the jury to accept the evidence of the complainer as a whole. In his charge the trial judge correctly directed the jury that they required to be satisfied that there was corroboration as to the complainer's lack of consent to intercourse and of the appellant's mens rea. At page 28 of the transcript he pointed out that the Crown had invited the jury to accept evidence of the complainer that the sexual intercourse

"was without her consent, and to accept her evidence indeed that the sexual intercourse was forced on her against her will by the accused...".

At pages 30-31 he directed the jury that they could have regard to evidence given by others as to the complainer's appellant emotional state as seen by them shortly afterwards

"as providing possible corroboration of evidence given by the complainer that the sexual intercourse was without her consent, and indeed of any evidence given by the complainer that it was forced against her will".

There is ample authority, which Mr. Carroll did not seek to challenge, that where a complainer gives evidence that she was forcibly raped, that account can be corroborated by evidence of distress (Yates v. H.M. Advocate 1990 J.C. 378; Smith v. Lees 1997 S.C.C.R. 139).

[9] The appeal against conviction is accordingly refused.